Supreme Court

For more than a year, oil giant BP has waged a massive public relations battle to convince Americans that the company has been bamboozled by the oil spill claims process relating to the 2010 Deepwater Horizon oil rig blowout.

This BPPR campaign has involved full-page newspaper ads paid for by the company suggesting it is being swindled by Gulf Coast residents who were not affected by the oil spill. BP spokesepeople have appeared in the media to argue that the claims process has been “absurd.” And evidence even suggests that the company has employed online “trolls” to attack legitimate victims on social media websites.

BP has spent hundreds of millions of dollars on this PR blitz, all because they want to avoid paying out any more claims to Gulf Coast residents. But the problem the company is running into now is that independent investigations have shown that the claims process is not rife with fraud, as BP has claimed.

Last week, the U.S. Court of Appeals for the D.C. Circuit lifted a hold it had placed on the CSAPR, effectively giving the EPA a green light to begin implementing the rule, which regulates air pollution from power plants in 28 states that drifts across state lines, contributing to ozone and fine particle pollution.

The CSAPR creates a two-step process: first the EPA determines whether or not a state contributes more than 1% of the pollution causing a neighbor to exceed federal air standards, then the EPA gives the polluter state an emissions budget based on a complex modeling system.

It's been a long road for the EPA to get to this point. Courts struck down the agency's first two attempts to draft a rule for regulating sulfur and nitrogen emissions from power plants that drift from one state to another. After the EPA announced the final CSAPR in July of 2011, the D.C. Circuit Court of Appeals placed a hold on the rule the following December before throwing it out altogether last year in response to a lawsuit filed by 15 power utilities and upwind states.

But in April of this year, the Supreme Court ruled 6-2 in favor of the EPA, upholding the CSAPR. In the majority opinion, Justice Ruth Bader Ginsburg wrote that the CSAPR “is a permissible, workable, and equitable interpretation of the Good Neighbor provision” of the Clean Air Act, which grants the EPA the authority to regulate intersate pollution that threatens national air quality standards.

New York's highest state court ruled today that local governments have the legal authority to use zoning to bar oil and gas drilling, fracking and other heavy industrial sites within their borders. In a 5-2 decision, affirming the rulings of three lower courts, the justices dismissed challenges to fracking bans created by two towns, Middlefield and Dryden.

The case has been closely watched by the oil and gas industry in the Marcellus region and nationwide. Over 170 towns, villages and cities in New York state have crafted local moratoria or bans on fracking. Dozens more towns are expected to enact moratoria in the wake of this ruling, according to Earthworks, one of the public interest groups whose attorneys worked on the case.

Nationwide, nearly 500 local governments have enacted measures against fracking, according to Food and Water Watch which tracks local control actions, including towns in Texas, West Virginia, Pennsylvania, Colorado and California, each of which have been the focus of recent shale rushes.

The oil and gas industry had argued that allowing local control over fracking risked creating a patchwork of rules in different municipalities. Environmental groups countered that the rights of local communities to control development within their borders trumped those concerns, and that local governments had the clear legal authority to decide how development could proceed.

“On the one hand, you're saying yes, we should have a comprehensive strategy to deal with such an important issue to our state – energy,” Chief Judge Jonathan Lippman explained when the cases were argued before the court on June 3. “And on the other hand, municipalities believe (they can) determine how they're going to live. They want some voice in how they live.”

Today, less than a month later, the court's majority decided in favor of local control. “The towns both studied the issue and acted within their home rule powers in determining that gas drilling would permanently alter and adversely affect the deliberately-cultivated, small-town character of their communities,” the New York Court of Appeals wrote in its majority ruling.

“History,” the old adage goes, “repeats itself.” And this is precisely the reason why we learn it.

Exhibit A: Wisconsin v. Yoder (1972), a landmark First Amendment Court battle royale. The case's facts, as summarized by Oyez, are as follows:

Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy, a member of the Conservative Amish Mennonite Church, were prosecuted under a Wisconsin law that required all children to attend public schools until age 16. The three parents refused to send their children to such schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs.

The Court was tasked to answer the following question: Did Wisconsin's requirement that all parents send their children to school at least until age 16 violate the First Amendment by criminalizing the conduct of parents who refused to send their children to school for religious reasons?

With the U.S. Environmental Protection Agency (EPA) set to finally enact stricter air pollution standards in accordance with the Clean Air Act and two subsequent U.S. Supreme Court decisions requiring them to do so, powerful Republicans in the U.S. House of Representatives are working to make sure that the new standards never see the light of day. The specific measures being targeted are the EPA’s new standards for carbon emissions from power plant smoke stacks.

Fred Upton (R-MI), chairman of the House Energy and Commerce Committee, along with Republicans Joe Barton (TX) and Ed Whitfield (KY) sent a letter last week to the White House, demanding that the Obama administration take action to stop the EPA from regulating carbon emissions from power plants.

The U.S. Supreme Court ruled against plaintiffs yesterday in a lawsuit (American Electric Power Co. v. Connecticut) brought by six states against several utility companies and the government-owned Tennessee Valley Authority. The states (California, Connecticut, Iowa, New York, Rhode Island, and Vermont) were attempting to force the utility companies to cut their greenhouse gas (GHG) emissions on the grounds that the emissions were a “public nuisance.” The Court unanimously declared that the judiciary should stay out of the matter because the Environmental Protection Agency (EPA) already has the authority to regulate emissions under the Clean Air Act.

President Obama previously stated that he stood with the utility companies in this suit, as well as in a similar suit being decided in a lower court. The utility companies in the suit included Duke Energy, American Electric Power, Southern Co, Excel Energy, and the aforementioned Tennessee Valley Authority.

The conservative think tank Heritage Foundation wasted no time yesterday in claiming that the Court’s ruling was a major blow to environmentalists, and managed to take a cheap shot at some of the liberal members of the court:

Ever since the U.S. Supreme Court ruled in 2007 that the Environmental Protection Agency had the authority to regulate greenhouse gas emissions (GHGs) under the Clean Air Act, Republicans and other climate-deniers have been given an unprecedented amount of airtime on television to deride the EPA’s new power. The folks over at Media Matters for America released a study showing that between December 2009 and April 2011, 76% of cable news guests were opposed to allowing the EPA to regulate GHGs, while only 18% spoke favorably of the decision.

As their research shows, these views are actually at odds with public opinion, as 71% of the public believes that the EPA should be allowed to regulate global warming pollution, and 76% believe that the government should have a direct role in curbing the emissions from polluters operating inside the United States.

Not only were the elected officials that appeared on most of these shows against regulations, but most also had received money from the energy industry during their careers.

Republicans in the U.S. Congress are gearing up to block any major move by the Environmental Protection Agency to regulate greenhouse gases–even though the Supreme Court ordered the agency to do so back in 2007. And even though the Congressitself is clearly not going to do anything else to address the problem in the next two years.

But yesterday we learned there’s a paradox at the heart of this obstructionist strategy. If the EPA doesn’t act or is hamstrung–and if Congress continues to dawdle–then guess what? A new global warming case just taken up by the Supreme Court may therefore stand a better chance of surviving the highest level of review—thus providing another possible way of restricting and punishing the polluters who are contributing to climate change.

It’s tempting, but most certainly optimistic, to view President Bush’s 2008 State of the Union as his last gasp at blocking progress on global warming. He will, after all, be gone from office before the year is out and it’s tempting to think he hasn’t sufficient time to further damage efforts to reign in climate change.

But there’s no time to lose. And continued obstructionism by the Bush Administration doesn’t just highlight its continuing failure to grasp the urgency of the problem, it also ensures far greater difficulties for its successors, who will have to arrest the problem at home while pressing other major polluters like China and India to act.

Democracy is utterly dependent upon an electorate that is accurately informed. In promoting climate change denial (and often denying their responsibility for doing so) industry has done more than endanger the environment. It has undermined democracy.

There is a vast difference between putting forth a point of view, honestly held, and intentionally sowing the seeds of confusion. Free speech does not include the right to deceive. Deception is not a point of view. And the right to disagree does not include a right to intentionally subvert the public awareness.